Monday, March 4, 1996

1622 1 2 3 4 ALBANY, NEW YORK 5 March 4, 1996 6 3:00 p.m. 7 8 9 REGULAR SESSION 10 11 12 13 SENATOR JOHN R. KUHL, JR., Acting President 14 STEPHEN F. SLOAN, Secretary 15 16 17 18 19 20 21 22 23 1623 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order. The members to find 4 their chairs, staff to find their places. 5 I ask all of you to rise, all 6 of you in the chamber to rise in joining me in 7 saying the Pledge of Allegiance. 8 (The assemblage repeated the 9 Pledge of Allegiance to the Flag.) 10 ACTING PRESIDENT KUHL: In 11 the absence of clergy, may we bow our heads in 12 a moment of silence. 13 (A moment of silence was 14 observed.) 15 ACTING PRESIDENT KUHL: Reading 16 of the Journal. 17 THE SECRETARY: In Senate 18 Sunday, March 3rd, the Senate met pursuant to 19 adjournment, Senator Hoblock in the Chair upon 20 designation of the Temporary President. The 21 Journal of Saturday, March 2nd was read and 22 approved. On motion, Senate adjourned. 23 ACTING PRESIDENT KUHL: Hearing 1624 1 no objection, the Journal stands approved as 2 read. 3 Presentation of petitions. 4 Messages from the Assembly. 5 Messages from the Governor. 6 Reports of standing 7 committees. 8 I'll ask the Secretary to read. 9 THE SECRETARY: Senator 10 Velella, from the Committee on Insurance, 11 reports the following bills: 12 Senate Print 2716A, by Senator 13 Velella, an act to amend the Insurance Law in 14 relation to the maximum automobile insurance 15 discount; 16 2764C, by Senator Velella, an 17 act to amend the Insurance Law in relation to 18 reciprocal insurers; 19 4643, by Senator DeFrancisco, 20 an act to amend the Insurance Law in relation 21 to the premium or compensation for giving bail 22 bond; 23 5737, by Senator Velella, an 1625 1 act to amend the Insurance Law in relation to 2 providing for a reduction in automobile 3 insurance; 4 6004, by Senator Leibell, an 5 act to amend the Insurance Law in relation to 6 expanding provisions relating to insurable 7 interests; 8 and 6125, by Senator Velella, 9 an act to amend the Insurance Law in relation 10 to continuing authorization for certain prepaid 11 legal services plans. 12 All bills ordered directly for 13 third reading. 14 ACTING PRESIDENT KUHL: Without 15 objection, all bills are directed directly to 16 third reading. 17 Reports of select committees. 18 Communications and reports from 19 state officers. 20 Motions and resolutions. 21 Chair recognizes Senator 22 DiCarlo. 23 SENATOR DiCARLO: Thank you, 1626 1 Mr. President. 2 On behalf of Senator Libous, 3 please place a sponsor's star on Calendar 336. 4 ACTING PRESIDENT KUHL: At the 5 request of the sponsor, Calendar 336 is 6 starred. 7 SENATOR DiCARLO: Also, Mr. 8 President, on behalf of Senator Present, on 9 page 17, I offer the following amendments to 10 Calendar 311, Senate Print 1931, and ask that 11 said bill retain its place on the Third Reading 12 Calendar. 13 ACTING PRESIDENT KUHL: 14 Amendments to Calendar Number 331 are received 15 and adopted. Bill will retain its place on the 16 Third Reading Calendar. 17 Senator DiCarlo. 18 SENATOR DiCARLO: Also, Mr. 19 President, on behalf of Senator Leibell, on 20 page 10, I offer the following amendments to 21 Calendar 239, Senate Print 3384, and ask that 22 said bill retain its place on the Third Reading 23 Calendar. 1627 1 ACTING PRESIDENT KUHL: Amend 2 ments to Calendar Number 239 received and 3 adopted. The bill will retain its place on the 4 Third Reading Calendar. 5 Senator Bruno, that brings us 6 to the calendar. 7 SENATOR BRUNO: Mr. President, 8 can we, at this time, take up the non 9 controversial calendar. 10 ACTING PRESIDENT KUHL: The 11 Secretary will read the noncontroversial 12 Calendar. 13 THE SECRETARY: Calendar Number 14 152, by Senator Volker, Senate Print 2151, an 15 act to amend the General Municipal Law and the 16 Personal Property Law in relation to payment of 17 municipal fees. 18 ACTING PRESIDENT KUHL: The 19 Secretary will read the last section. 20 THE SECRETARY: Second 5. This 21 act shall take effect immediately. 22 ACTING PRESIDENT KUHL: Call 23 the roll. 1628 1 (The Secretary called the 2 roll.) 3 THE SECRETARY: Ayes 43. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 202, by Senator Hoblock, Senate Print 2352A, 8 an act to amend the Penal Law in relation to 9 increasing the penalties for sale of controlled 10 substances. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 THE SECRETARY: Section 7. 14 This act shall take effect on the first day of 15 November. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the 19 roll.) 20 THE SECRETARY: Ayes 43. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 1629 1 220 by Senator Skelos, Senate Print 425. 2 SENATOR PATERSON: Lay it 3 aside. 4 ACTING PRESIDENT KUHL: Lay the 5 bill aside. 6 THE SECRETARY: Calendar 7 Number 236, by Senator LaValle, Senate Print 8 1368A, an act to amend the Town Law in relation 9 to exempting from fire district revenues 10 amounts appropriated for equipment. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 THE SECRETARY: Section 2. 14 This act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call 16 the roll. 17 (The Secretary called the 18 roll.) 19 THE SECRETARY: Ayes 43. 20 ACTING PRESIDENT KUHL: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 253, by Senator Saland, Senate Print 2110A, an 1630 1 act to amend the Executive Law and the Social 2 Services Law in relation to making reports of 3 child abuse available. 4 ACTING PRESIDENT KUHL: The 5 Secretary will read the last section. 6 THE SECRETARY: Section 5. 7 This act shall take effect on the 90th day. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the 11 roll.) 12 THE SECRETARY: Ayes 43. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 254, by Senator Nozzolio, Senate Print 2244A. 17 SENATOR PATERSON: Lay it 18 aside. 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside. 21 THE SECRETARY: Calendar Number 22 255 by Senator Skelos, Senate Print 2337D, an 23 act to amend the Correction Law and the 1631 1 Criminal Procedure Law in relation to 2 notification concerning released or escaped 3 inmates. 4 SENATOR SKELOS: Lay it aside 5 for amendments. 6 ACTING PRESIDENT KUHL: Lay the 7 bill aside. 8 THE SECRETARY: Calendar Number 9 265, by Senator Kuhl, Senate Print 4296, an act 10 to amend the Education Law in relation to 11 optional retirement programs for employees of 12 the State University of New York. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the last section. 15 THE SECRETARY: Section 2. 16 This act shall take effect immediately. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the 20 roll.) 21 THE SECRETARY: Ayes 43. 22 ACTING PRESIDENT KUHL: The 23 bill is passed. 1632 1 THE SECRETARY: Calendar Number 2 275, by Senator DiCarlo, Senate Print 6149, an 3 act to amend the Real Property Tax Law, the 4 Administrative Code of the city of New York and 5 local law number 1 of the city of New York. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 4. This 9 act shall take effect immediately. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the 13 roll.) 14 THE SECRETARY: Ayes 43. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 278, by Senator Stafford, Senate Print 617, an 19 act to amend the Real Property Law in relation 20 to authorizing a voluntary administration to 21 execute a discharge of mortgage. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 1633 1 THE SECRETARY: Section 2. 2 This act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the 6 roll.) 7 THE SECRETARY: Ayes 48. 8 ACTING PRESIDENT KUHL: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 280 by Senator Trunzo, Senate Print 2145, an 12 act to amend the Eminent Domain Procedure Law 13 in relation to acquisition of land by the 14 state. 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the last section. 17 THE SECRETARY: Section 2. 18 This act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call 20 the roll. 21 (The Secretary called the 22 roll.) 23 THE SECRETARY: Ayes 48. 1634 1 ACTING PRESIDENT KUHL: The 2 bill is passed. 3 THE SECRETARY: Calendar Number 4 287, by Senator Cook, Senate Print 636, an act 5 to amend the Town Law in relation to the terms 6 of office of elected officers. 7 SENATOR PATERSON: Lay it 8 aside, please. 9 ACTING PRESIDENT KUHL: Lay the 10 bill aside. 11 THE SECRETARY: Calendar Number 12 289, by Senator LaValle, Senate Print 1652, an 13 act to amend the Town Law in relation to 14 initiation of a criminal history check. 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the last section. 17 THE SECRETARY: Section 2. 18 This act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call 20 the roll. 21 (The Secretary called the 22 roll.) 23 THE SECRETARY: Ayes - 1635 1 ACTING PRESIDENT KUHL: Announce 2 the results when tabulated. 3 THE SECRETARY: Ayes 47, nays 4 1, Senator Leichter recorded in the negative. 5 ACTING PRESIDENT KUHL: The 6 bill is passed - 7 THE SECRETARY: On Calendar 8 Number 289, ayes 48, nays zero. 9 ACTING PRESIDENT KUHL: The 10 bill is passed. 11 Senator Bruno, that completes 12 the noncontroversial calendar; what's your 13 pleasure? 14 SENATOR BRUNO: Mr. President, 15 can we now take up the controversial calendar. 16 ACTING PRESIDENT KUHL: The 17 Secretary will read the controversial calendar, 18 commencing with Calendar Number 220. 19 THE SECRETARY: Calendar Number 20 220, by Senator Skelos, Senate Print 425, an 21 act to amend the Business Corporation Law, in 22 relation to corporate finance, proxies, powers 23 of directory and mergers. 1636 1 ACTING PRESIDENT KUHL: Senator 2 Leichter, why do you rise? 3 SENATOR LEICHTER: Mr. 4 President, on the bill. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter, on the bill. 7 SENATOR LEICHTER: I just want 8 to remind colleagues that we had a somewhat 9 extensive debate on this bill last week, and I 10 don't want to rehash all the things that were 11 said, but I think it's worth remembering 12 because I think it's a very significant bill. 13 And I find it ironic, while the 14 whole rest of the nation, Democrats and 15 Republicans, Bob Dole, Buchanan, everybody else 16 is talking about corporate irresponsibility, 17 this state Legislature, or at least this bill 18 by Senator Skelos, goes exactly in the opposite 19 direction that everybody in the nation knows 20 and thinks that we need to go, which is to 21 provide for greater corporate democracy, to 22 provide for greater corporate responsibility. 23 Just to remind you of some of 1637 1 the features of this bill, one is, it changes 2 long-standing New York State law that holds 3 corporate officers, or directors, rather, 4 responsible for unpaid wages under certain 5 circumstances; allows directors for the first 6 time to provide for loans that the corporation 7 will make to the directors; grants directors 8 the powers to give themselves greater options 9 or options which I guess at this time, they 10 cannot do; it dilutes the rights of share 11 holders to vote on certain matters. 12 Why would we do this? I'm told 13 by Senator Skelos, well, this is going to bring 14 more business to lawyers in New York State. I 15 don't know if that's so or not, but I assure 16 you that that's hardly justification for really 17 screwing the shareholders. 18 I think that if you have a 19 corporation that's incorporated in the state of 20 New York, I would like to see us hold that 21 corporation to certain standards. 22 One of the facts that has 23 recently come out, I guess the statistic is a 1638 1 fact, but I think all of us have known how 2 executive compensation has really increased so 3 enormously in this country, and the Times 4 pointed out just a week or so ago in an 5 editorial where they also talked about 6 corporate responsibility, just the opposite of 7 what this bill does, which is a bill of 8 corporate irresponsibility, the Times pointed 9 out that corporate or executive compensation, 10 which used to be corporate officers, on the 11 whole would receive maybe 40 times as much as 12 the average worker; that's now 200 times as 13 much. While we're having corporations 14 downsizing, they're having record profits, 15 executive compensation is up enormously; and 16 under this bill, it will go up even more. 17 I learned early on from law 18 school and in my practice that really one of 19 the protections and an important protection for 20 the people who own the corporations, not the 21 managers, but the shareholders, is to have a 22 great degree of corporate democracy, require 23 the shareholders to act on important issues 1639 1 affecting the corporation, particularly the 2 structure of the corporation and be sure that 3 you hold the directors to the highest fiduciary 4 duty, don't allow their self-interests to 5 interfere. This bill does just the opposite, 6 allows directors to give themselves options, 7 allows directors to go out and get loans. 8 We were told last week that the 9 Bar Association has approved that bill; I've 10 not -- I've tried to check on it and I've not 11 seen a memo. I know that there's a committee 12 of the Bar Association made up of lawyers who 13 represent these large corporations that have 14 drafted this bill, they are in favor of it, but 15 I don't know -- and maybe Counsel or maybe, 16 Senator Skelos, you have something that says 17 that the Bar Association is actually supporting 18 this. I tried to check, I tried to find it, I 19 don't have it. If you have it, I'd be 20 interested. 21 But, I must tell you that I 22 think the people who prepared this did a 23 self-serving job. I'm sorry they sold you on 1640 1 it. 2 I really think that this bill 3 is a mistake; and for this Legislature at this 4 time when the whole focus is how do we get 5 corporations to be more responsible, how do we 6 get them to pay attention to their obligation 7 they have to their workers, to their 8 communities, not to be greedy when it comes to 9 corporate salaries or executive compensation, 10 this bill does exactly the opposite. I can't 11 understand it. 12 ACTING PRESIDENT KUHL: The 13 Secretary will read the last section -- Senator 14 Dollinger. 15 SENATOR DOLLINGER: Mr. 16 President, on the bill just briefly. 17 ACTING PRESIDENT KUHL: Senator 18 Dollinger on the bill briefly. 19 SENATOR DOLLINGER: We did 20 have a debate last time when we addressed this 21 bill and the two concerns I had were about the 22 provisions that actually, Senator Leichter, 23 just to clarify, not only under New York law 1641 1 can officers and directors be held liable for 2 the payment of wages to certain employees, but 3 under the current Section 630 of the Business 4 Corporation Law, in certain corporations, the 5 top ten shareholders can be held responsible 6 for the nonpayment of wages. 7 The reason why that provision 8 is in our PCL was because we in this state had 9 believed that while limited liability should 10 apply and protect the shareholders, owners of 11 the business from almost any other possible 12 remedy, protect them from injunctions, protect 13 them from civil lawsuits, we should allow them 14 to have the benefit of limited liability 15 corporations. 16 There was one thing that was so 17 important to us that we tore the shield of 18 limited liability away from a corporation and 19 said, "We're going to hold the shareholders 20 responsible." That one thing that we allow the 21 veil of corporate limited liability to be 22 lifted for is simply for the payment of wages. 23 When people work for a small 1642 1 corporation, they ought to be able to have 2 assurance that they're going to be paid, and 3 many times they are relying on the expressed 4 promise of a shareholder, director, officer to 5 engage in employment; and it seems to me we 6 retreat from the principle that people should 7 be paid for their work. 8 When we allow a corporation 9 simply to treat a worker like every other 10 creditor, it seems to me that's a step 11 backward, it's a step not in the best interests 12 of the working men and women of this state. 13 We also talked about my concern 14 about officers and directors and participation 15 of loans and how corporations can guarantee the 16 loans of directors without approval of the 17 shareholders; that, too, is a departure from 18 the notion of economic democracy that is a part 19 of all corporations. 20 There's one other thing that 21 I've noticed, Senator Leichter, in my going 22 back and looking through this, and that is the 23 requirement in Section 718 of the Business 1643 1 Corporation Law that provides that creditors 2 can get the lists of officers and directors of 3 a corporation prior to commencing litigation 4 against them. My understanding is the reason 5 that that provision is in the PCL is because if 6 you're about to sue a corporation, you were 7 going to make an allegation not only against 8 the corporation, but its shareholders -- excuse 9 me, its directors and officers, you would have 10 access to their address so you can serve them 11 with process. 12 This change would simply remove 13 that disclosure obligation to the corporation 14 and mean that you would have to bring the 15 action against the corporation first, find out 16 through the discovery and disclosure process 17 where everybody lived so you can then bring the 18 action against the directors, shareholders and 19 officers in their individual capacities. 20 It seems to me that just 21 postpones the whole litigation process, that 22 the notion that a corporation is obligated to 23 disclose to its creditors the officers' and 1644 1 directors' names and addresses so that you can 2 facilitate the litigation process in 3 appropriate cases, it seems to me, is still a 4 good idea. It's too bad that it's being 5 abandoned in this bill. 6 This bill contains an awful lot 7 that deals with the notion of restructuring our 8 business corporations. There are certainly 9 some good provisions in it. I give Senator 10 Skelos credit for going through and picking out 11 many of the good things that are in this bill 12 to improve shareholder democracy. But at least 13 from my perspective, I see those three issues, 14 loans to directors without shareholders' 15 approval, a retreat from our long-standing 16 notion that will protect workers' wages and 17 make shareholders liable, and the removal of 18 the fact that the corporation has to disclose 19 its officers and its directors to potential 20 litigants, as a retreat from important 21 principles in New York and, therefore, in 22 balance, Mr. President, I'll be voting in the 23 negative. 1645 1 ACTING PRESIDENT KUHL: The 2 Secretary will read the last section. 3 THE SECRETARY: Section 57. 4 This act shall take effect on the 180th day. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the 8 roll.) 9 ACTING PRESIDENT KUHL: Announce 10 the results when tabulated. 11 THE SECRETARY: Those recorded 12 in the negative on Calendar Number 220 are 13 Senators Abate, Connor, Dollinger, Leichter, 14 Markowitz, Montgomery, Onorato, Paterson, 15 Seabrook and Smith. Ayes 45, nays 10. 16 ACTING PRESIDENT KUHL: The 17 bill is passed. 18 The Secretary will continue to 19 call the controversial calendar. 20 THE SECRETARY: Calendar Number 21 254, by Senator Nozzolio, Senate Print 2244A, 22 an act to amend the Correction Law in relation 23 to limiting time allowances for good behavior 1646 1 for sexual offender. 2 ACTING PRESIDENT KUHL: Senator 3 Nozzolio, an explanation of Calendar Number 254 4 has been asked for by the Acting Minority 5 Leader, Senator Paterson. 6 SENATOR NOZZOLIO: Thank you, 7 Mr. President. 8 Senator Paterson, my 9 colleagues, my measure before us today would 10 exclude from good time allowances a person 11 being held in a correctional institution in 12 this state as a result of them committing a 13 heinous sexual predator offense against a 14 child; that this, in my opinion, is such an 15 offense that warrants no so-called good time 16 behavior. 17 There is no good time behavior 18 breaks for those who have been the victims of 19 this heinous type of criminality. Scarred for 20 life, hurt for life, is the victim. 21 Just because the prisoner 22 happens to be a good, by-the-rule person in 23 prison doesn't afford them such an opportunity 1647 1 to be let out of jail early as a result of them 2 being incarcerated and following the rules of 3 prison life. 4 That's the bill, the sum and 5 substance of it, Mr. President. Thank you. 6 ACTING PRESIDENT KUHL: The 7 Chair recognizes Senator Abate. 8 SENATOR ABATE: Would Senator 9 Nozzolio yield to a question? 10 ACTING PRESIDENT KUHL: Senator 11 Nozzolio, do you yield to Senator Abate? 12 SENATOR NOZZOLIO: Yes. 13 ACTING PRESIDENT KUHL: The 14 Senator yields. 15 SENATOR ABATE: Last year, we 16 passed a law that dealt with two- and three 17 time, or persistent violent offenders, some of 18 them included sex offenders; and am I correct, 19 in that law, we eliminated discretionary parole 20 for those individuals? What I mean by 21 "discretionary parole," because we went to a 22 determinant sentencing scheme which meant that 23 someone wasn't doing three to nine, they were 1648 1 now doing six years, that there was no 2 eligibility for early release for parole. 3 Didn't we pass that last year? 4 SENATOR NOZZOLIO: Senator 5 Abate, let me respond to that question because 6 I know what your issue is, you're concerned, as 7 we've discussed, with this measure, continuing, 8 if I may, the sense, if it's your question, the 9 sum of your concern, is that you're concerned 10 that we don't have continued parole supervision 11 for those who have committed this crime, is 12 that not correct? 13 SENATOR ABATE: My concern is, 14 given the fact that we eliminated discretionary 15 parole and then we talked about reducing good 16 time from one-third to one-seventh, if we 17 eliminate good time altogether, it's my under 18 standing, under your bill, many of these sex 19 offenders who are violent that are likely to 20 recidivate would leave prison, not go under 21 parole supervision, and just be on the street 22 without supervision and that I favor an 23 approach of reducing good time but keeping some 1649 1 good time so that parole can kick in and we can 2 screen and follow these individuals in the 3 community. 4 This would eliminate 5 discretionary parole, as well as parole based 6 on good time. 7 SENATOR NOZZOLIO: Senator, 8 your point is taken with good spirit in that 9 after you raised it during our committee 10 discussions, I have introduced, along with 11 Assemblyman Sweeney in the Assembly, a measure 12 that is sponsored by, it looks like, close to 13 ten members of this house that will amend the 14 law to provide active supervision and a life 15 time parole component for those who have 16 committed sex predator offenses against 17 children, that I believe your concern is 18 extremely legitimate. 19 I commend you to take a look at 20 this measure, it's Senate Bill 6175; and that 21 measure, I believe, gets to the essence of the 22 concern that you raise about continuing parole 23 supervision for anyone, regardless of good time 1650 1 behavior or not, let out of prison, that this 2 measure will be, I believe, on the floor of 3 this house within a very few days and that it 4 is to take in companion with the bill before us 5 which, as you well know, reduces good time 6 behavior, eliminates the possibility of good 7 time behavior and then, taken in conjunction 8 with S6175, would have a mandatory lifetime 9 parole requirement for those convicted of this 10 type of crime. 11 SENATOR ABATE: Could the 12 Senator yield to another question? 13 ACTING PRESIDENT KUHL: Senator 14 Nozzolio, do you continue to yield? 15 SENATOR NOZZOLIO: Certainly, 16 Mr. President. 17 ACTING PRESIDENT KUHL: Senator 18 continues to yield. 19 SENATOR ABATE: Since I cannot 20 comment on this new bill that you've drafted, 21 and I certainly appreciate your taking into 22 consideration some of the concerns I've raised 23 in committee, would this new bill also cover A 1651 1 misdemeanor sex offenses, because sex offenders 2 fall in a lot of different categories, some of 3 them are B felons and A misdemeanants. Would 4 this cover the full array of sex offenders? 5 So would we be talking about life parole for 6 someone who's been convicted of 130.20, which 7 is sexual misconduct, an A misdemeanor? 8 SENATOR NOZZOLIO: Let me 9 list the enumerated crimes, Senator, that 6175 10 will be involved -- if I may suffer an 11 interruption for a second. 12 Senator, are you asking the 13 crimes for the bill that's before us or the 14 bill that -- are you asking the crimes of the 15 bill that's before us? 16 SENATOR ABATE: No. In terms 17 of -- you talked about life parole. My concern 18 is that sex offenders shouldn't be released 19 without parole supervision. 20 SENATOR NOZZOLIO: Then let me 21 list those crimes for you of the bill that I 22 had described earlier that is not before the 23 house at this moment. Those crimes are - 1652 1 designated sex offender means a person 2 convicted of the following felonies: Section 3 130.30, 130.35, 130.45, 130.50, 65, 67 and 70 4 related to sex offenses, listing felonies. I 5 don't have a misdemeanor here listed. 6 SENATOR ABATE: Okay. So - 7 but then this bill -- if I'm correct, this bill 8 before us now, which is 2244 which is on the 9 floor, applies to misdemeanants, as well as 10 felons, so there would be some misdemeanants, 11 if I understand the bill correctly, that 12 potentially could be supervised without parole? 13 SENATOR NOZZOLIO: What 14 misdemeanor sex predator circumstance would not 15 be under a felony, Senator, that you're 16 concerned with? 17 SENATOR ABATE: Well, you have 18 sexual misconduct, you have sexual abuse in the 19 third degree, in the second degree, aggravated 20 sexual abuse. So I don't know whether -- if 21 this law applies - 22 SENATOR NOZZOLIO: Pardon me, 23 Senator, pardon me. For my edification, those 1653 1 are misdemeanors? 2 SENATOR ABATE: Yes. 3 SENATOR NOZZOLIO: Maybe they 4 shouldn't be misdemeanors, maybe we should make 5 them felonies. I would certainly support 6 making them felonies; and if we could get the 7 Assembly to make them felonies, I think we 8 would all be better off. But, frankly, I don't 9 believe that -- if you would like to help with 10 that, that certainly would be something I would 11 certainly support, making those enumerated 12 offenses felonies. 13 SENATOR ABATE: Senator 14 Nozzolio, I thank you for the clarification on 15 the bill; I have a greater understanding of 16 it. 17 Could I be heard on the bill? 18 ACTING PRESIDENT KUHL: Senator 19 Abate on the bill. 20 SENATOR ABATE: I share 21 Senator Nozzolio's concern and I would say that 22 probably every member of this body shares the 23 concern about the dangers of sex offenders on 1654 1 the street. We're well aware that there's no 2 overall cure, there's a high recidivism rate, 3 and we have seen recent studies that show that 4 the victims of sex offenders are more likely to 5 be children than adults. 6 My concern is, last year -- and 7 we're moving in a Governor's bill to eliminate 8 discretionary parole, which is -- what that 9 does is elongate the sentence and that probably 10 is appropriate, there are certain sex offenders 11 that should stay in prison longer. But, what 12 this bill does is takes it another step, 13 eliminates good time, which means that an 14 individual charged with a sex offense would 15 have to serve the entirety of their sentence. 16 I would debate -- and I think 17 it's a good idea for sex offenders to reduce 18 good time from one- third, off the back, to 19 one-seventh, but what this bill does, it 20 eliminates good time altogether so when an 21 individual serves the entirety of their 22 sentence, they walk out the door with $30 in a 23 their pocket, they're told go back to their 1655 1 home and there is no parole supervision. 2 I happen to believe that parole 3 can serve a very vital function in this arena. 4 I've seen, in my work in probation, the 5 necessity when someone goes to their home, 6 there's needs of supervision, there needs to be 7 home visits, and the transition time from being 8 released from prison to the point of that first 9 year in the community is a critical time when 10 you're going to see many offenders recidivate. 11 It's critical that the parole 12 officer does home visits. We need to know 13 where that offender is going to relocate; is it 14 going to be near a school? When a parole 15 officer goes to the home, they can see what 16 kind of child paraphernalia is at home. It's 17 important to make sure that that person gets 18 into treatment, they need to be monitored; and 19 oftentimes and if you speak to the parole 20 department, they can catch someone before they 21 commit the next crime. 22 So in terms of public safety, 23 this is not -- what I'm proposing is tougher on 1656 1 crime because what I'm suggesting is we've 2 already elongated the sentences by taking, 3 particularly for discretionary and violent 4 offenders, we have taken away discretionary 5 parole, ensure there's a period of time, even 6 make it one-seventh, not one-third, where that 7 individual is supervised intensely by case 8 loads, make it ten to one- now it's 25 to one 9 - so we know what they're doing. 10 And the Meagan's Law goes so 11 far, it tracks; I'm talking about someone 12 breathing down the neck of that individual so 13 we know what they're doing. This bill just 14 says, "You served your time, go home and do 15 your thing." Well, doing your thing, I 16 believe, will jeopardize the safety of women 17 and children and many people in our community. 18 For that reason, I'm against eliminating 19 altogether the good time allowance because, in 20 effect, that will mean parole will be out of 21 the business of supervising sex offenders. I 22 don't think that's what we want to do. 23 So, in all due respect to 1657 1 Senator Nozzolio, I agree with his intentions. 2 These are very serious offenders, but I think 3 we need to keep the parole component, even if 4 it's for a short period of time, in those 5 critical months when we know through statistics 6 offenders re-offend, particularly sex 7 offenders. 8 I hope my colleagues will join 9 me in sending this back to committee so we can 10 take another look at it. 11 Thank you. 12 ACTING PRESIDENT KUHL: Senator 13 Leichter, why do you rise? 14 SENATOR LEICHTER: Yes. Mr. 15 President, would Senator Nozzolio yield? 16 ACTING PRESIDENT KUHL: Senator 17 Nozzolio, do you yield to a question from 18 Senator Leichter? 19 SENATOR NOZZOLIO: Yes. 20 ACTING PRESIDENT KUHL: The 21 Senator yields. 22 SENATOR LEICHTER: Senator, 23 I'm trying to understand the rationale for your 1658 1 bill; and I read the memo, I listened to the 2 debate that you had with Senator Abate. Is it 3 your view that presently people who commit the 4 crimes that you have enumerated do not serve 5 sufficiently long sentences? 6 SENATOR NOZZOLIO: Mr. 7 President, knowing Senator Leichter as I do and 8 watching his voting record over these last four 9 years, I doubt he would ever understand the 10 rationale for this measure, but let me try, 11 Senator. Let me try to impart the rationale to 12 you. 13 SENATOR LEICHTER: I wish you 14 would, Senator. 15 SENATOR NOZZOLIO: The 16 rationale is that those who commit violent 17 sexual acts against children and victimize 18 children should not be given consideration for 19 what's called good time behavior while they're 20 in prison. The length of a sentence of a 21 prisoner in this state is reduced by what's 22 called good time behavior, if they're good boys 23 and girls while they're in prison, they, in 1659 1 fact, are given an opportunity to get out of 2 jail earlier; this measure today precludes that 3 opportunity. 4 ACTING PRESIDENT KUHL: Senator 5 Leichter. 6 SENATOR LEICHTER: Would the 7 Senator continue to yield? 8 SENATOR NOZZOLIO: Yes. 9 ACTING PRESIDENT KUHL: Senator 10 continues to yield, Senator Leichter. 11 SENATOR LEICHTER: Senator, 12 I'm glad you've watched how I voted and I think 13 you know that one thing I dislike particularly 14 is bills that pander. I just heard the 15 response that you gave, Senator, and I think 16 all of us would agree that child molesters need 17 to be treated in a particular way. But 18 Senator, your bill is not limited to people who 19 molest children. You've, as I see it, included 20 a number of sexual offenses, as Senator Abate 21 pointed out, that are misdemeanors, that don't 22 involve molestation. 23 SENATOR NOZZOLIO: Mr. 1660 1 President, if I may respond. The enumerated 2 felonies, Senator Leichter, are these: Incest, 3 use of a child in a sexual performance, 4 promoting an obscene sexual performance by a 5 child, promoting sexual performance by a 6 child. Those are the enumerated felonies in 7 this measure. 8 SENATOR LEICHTER: Then which 9 -- okay. Then maybe I misunderstood your 10 answer or Senator Abate's question. There are 11 no misdemeanors included within - 12 SENATOR NOZZOLIO: That's 13 correct, Mr. President. 14 SENATOR LEICHTER: There are 15 not, is that correct? 16 SENATOR NOZZOLIO: That is 17 correct, Mr. President. 18 SENATOR LEICHTER: Senator, if 19 indeed you feel - 20 ACTING PRESIDENT KUHL: Senator 21 Nozzolio, do you continue to yield? 22 SENATOR NOZZOLIO: Is Senator 23 Leichter asking me to yield? 1661 1 ACTING PRESIDENT KUHL: Yes, I 2 believe so. You're asking Senator Nozzolio to 3 continue to yield, are you not, Senator 4 Leichter? 5 SENATOR LEICHTER: Yes, 6 please. 7 SENATOR NOZZOLIO: Yes, Mr. 8 President. 9 ACTING PRESIDENT KUHL: Senator 10 continues to yield. 11 SENATOR LEICHTER: Senator 12 Nozzolio, if, indeed, you feel that people who 13 commit these offenses should serve longer 14 sentences, isn't the way that we've structured 15 our Penal Law to provide sentences that 16 whoever's sponsoring the bill feels are 17 commensurate with the crime? 18 I have difficulty understanding 19 why these particular crimes are treated in the 20 fashion that you do lengthening the services by 21 making -- by making them determinant sentences. 22 SENATOR NOZZOLIO: Mr. 23 President, let me respond to my colleague's 1662 1 question in this fashion: Frankly, I resent 2 his characterizations of this measure as an 3 attempt at pandering, that that is certainly - 4 SENATOR LEICHTER: Senator, I 5 know you would never do that and I didn't say 6 that. 7 SENATOR NOZZOLIO: I thought I 8 heard you say that. 9 SENATOR LEICHTER: But please 10 continue. 11 SENATOR NOZZOLIO: I thought I 12 heard that, Senator, but - 13 SENATOR LEICHTER: You heard 14 me say that I don't like bills that pander, but 15 if you feel that that fits, Senator, that's 16 your determination. 17 SENATOR NOZZOLIO: Mr. 18 President, sex offenders have committed 19 extremely grievous offenses, that we're talking 20 about offenses here against the most innocent 21 of victims, that sex offenders have 22 demonstrated the highest rate of recidivism of 23 all criminals sent to prison. To me it makes 1663 1 no sense to give those who commit this crime 2 the opportunity to get out of jail early before 3 their sentence is completed as a result of what 4 is a system in our penal institutions in this 5 state of good time behavior, and that is 6 getting out of jail earlier if they 7 participate -- if they basically do not get in 8 serious trouble while serving their sentences. 9 I believe sex predators who 10 have committed these offenses and that we, as a 11 legislature, who determine sentences should 12 make a firm statement that we believe people 13 who commit these offenses should stay in jail 14 for the length of their sentence. It should 15 not -- those sentences should not be reduced by 16 a policy of the corrections department that 17 establishes good time behavior and that is why 18 this measure is before us, Senator, and that's 19 why I'm stridently supporting it. I believe it 20 is essential, it's necessary, it stops or 21 closes a loophole that exists in the law today 22 where sex predators are not serving their 23 entire sentences. 1664 1 ACTING PRESIDENT KUHL: Senator 2 Leichter. 3 SENATOR LEICHTER: If Senator 4 Nozzolio would continue to yield. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter, excuse me just a minute. Let me ask 7 him, okay? 8 Senator Nozzolio, do you 9 continue to yield? 10 SENATOR NOZZOLIO: Yes, Mr. 11 President. 12 ACTING PRESIDENT KUHL: Senator 13 continues to yield. 14 SENATOR LEICHTER: Senator, 15 those are nice sound bites about loopholes in 16 the law. There's no loophole in the law 17 whatsoever. The law in this state is that 18 except for where there is a sentence for life, 19 somebody's committed particular categories of 20 murder, that we have indeterminate sentences, 21 that we give people good time because we feel 22 that that is, one, a way of managing a jail 23 population, and I would think most experts in 1665 1 corrections feel that that makes a lot of 2 sense; secondly, that we, as Senator Abate 3 pointed out, feel that there is a value of 4 having people out where they're supervised, but 5 you still haven't answered my question, which 6 is if you feel that a sentence is too short, 7 that people, by reason of getting good time and 8 getting parole, can get out of jail earlier. 9 We have a lot of bills, I'm sure that every one 10 of them has your name on it either as sponsor 11 or cosponsor, which lengthens a sentence. 12 What I'm trying to understand 13 is why you have taken these particular crimes 14 and instead of addressing them in the way that 15 we usually do here where we feel that somebody 16 may serve a sentence that is too short, 17 lengthening the sentence, that you've taken 18 this one category and said, "I'm going to make 19 them determinant sentences." 20 SENATOR NOZZOLIO: Mr. 21 President, in response to Senator Leichter's 22 question, Senator, we have established a 23 certain sentencing guideline and certain 1666 1 sentencing structure in this state. Good-time 2 behavior in our correctional institutions can 3 result in a sentence being reduced by one-third 4 of the term imposed by the court. 5 What we're saying, as a policy 6 matter, is that we do not believe as Senators 7 and Assemblymen of this state that that 8 sentence for these types of crimes, this type 9 of criminality against children should be 10 reduced by one-third, simply because the 11 prisoner happens not to commit a prison riot, 12 happens not to stab somebody while in prison, 13 watches his cable TV at taxpayers' expense like 14 a good prisoner during the length of his stay 15 and, in effect, doesn't create disturbances 16 while in prison. That is not good enough, 17 Senator. Just because a prisoner is sent to 18 jail, does not create a riot, his sentence for 19 these types of crimes should not be reduced by 20 one-third. 21 If you were related to a victim 22 of this offense, I'm sure you would feel the 23 same way. 1667 1 SENATOR LEICHTER: Senator, I 2 would think that we provide greater protection 3 for society, maybe not as good headlines, but 4 greater protection for society, Senator, when 5 we have good time. As I pointed out, it deals 6 with management of inmate population, and I 7 think Senator Abate, who has a lot of 8 experience, having run a correctional system, 9 having been a parole officer, I think has 10 pointed out the value to society of having 11 these people under parole. 12 Now, I might very well support 13 a bill that, in certain instances, people 14 continue and stay under supervision, but I 15 still haven't gotten an answer to my question 16 why you approach this in terms of making it a 17 determinant sentence instead of approaching it 18 the way that this house generally has. I 19 usually haven't voted for these bills but I can 20 understand the logical approach which is that 21 you lengthen the sentence. You haven't done 22 that and you haven't given us a reason why 23 these become determinant. 1668 1 Let me ask you this question, 2 if you would continue to yield, please, Senator 3 Nozzolio: You say these are very heinous 4 crimes. These are heinous crimes, so is 5 murder, murder is a heinous crime, assault is a 6 heinous crime, those crimes continue to be 7 indeterminate sentences. I don't see you 8 saying that those people should serve longer 9 time. 10 I'm trying to understand the 11 logic, Senator. I understand the appeal the 12 bill has, but I'm trying to understand if it 13 makes sense. 14 SENATOR NOZZOLIO: Mr. 15 President, is Senator Leichter asking a 16 question? I don't understand the question. 17 ACTING PRESIDENT KUHL: Senator 18 Leichter, is that a rhetorical question to 19 Senator Nozzolio? 20 SENATOR LEICHTER: He can deal 21 with it however he wishes, Senator. 22 SENATOR NOZZOLIO: Senator, 23 are you saying that by asking the question - 1669 1 you say you don't understand the logic; it 2 doesn't surprise me, Senator, but I guess my 3 inadequacies of explaining it to you, I believe 4 it must be weighed against your intransigence 5 against -- in support of ensuring that 6 criminals are given every benefit possible in 7 this society. 8 Frankly, Senator, if you cannot 9 understand the logic of taking away a 10 prisoner's benefit of good time behavior for 11 particularly vile acts, Senator, I'm sorry, I 12 can't explain that. If you can't see the logic 13 in it, I can't explain logic to you if you 14 don't see that logic. I see logic in it, and 15 the logic I see is that for certain enumerated 16 offenses, having a benefit given to prisoners 17 simply further ignores the type of individual 18 that they victimized; and I, frankly, believe 19 that we should have lifetime parole, as well, 20 Senator, and that was the bill that Senator 21 Abate had asked me about, a bill that was not 22 on this floor, is not before the house, but is 23 a measure that is accorded with this one and, 1670 1 that is, establishing lifetime parole for those 2 who committed these same types of offenses with 3 the highest rate of recidivism of any criminal 4 recorded in this state. 5 ACTING PRESIDENT KUHL: Senator 6 Leichter. 7 SENATOR LEICHTER: Senator, I 8 think I understand the political logic; I was 9 trying to understand the logic, Senator, of 10 saying these particular crimes, we're going to 11 make determinant sentences. When there's an 12 approach of lengthening the sentences, if you 13 think that that is what is required for the 14 safety of society without, at the same time, 15 creating the difficulties in the jails which 16 this bill does and without freeing these people 17 from any supervision whatsoever when they get 18 out - 19 SENATOR NOZZOLIO: I'm 20 confident, Senator, that the correction 21 officers and the corrections department can 22 deal -- will be able to deal with this issue. 23 The question boils down to whether or not this 1671 1 Legislature decides to exempt the benefit of 2 good time behavior from those who are sex 3 predators, that's what the question is before 4 us, and that's the vote that we have this 5 afternoon. 6 SENATOR LEICHTER: Mr. 7 President, on the bill, and I - 8 ACTING PRESIDENT KUHL: Senator 9 Leichter, on the bill. 10 SENATOR LEICHTER: I thank 11 Senator Nozzolio. Let me just say that the 12 issue is of how we're going to deal with child 13 molesters or other, as Senator Nozzolio calls 14 them, sexual predators, in a fashion that's 15 going to protect society. 16 There's some feeling among some 17 members that maybe the sentences aren't long 18 enough, and what I'm trying to suggest to 19 Senator Nozzolio is that that can be dealt with 20 by changing the gradation of crimes providing 21 for lengthier sentences, which is the way that 22 we have dealt almost invariably within 23 instances where we feel a crime does not carry 1672 1 sufficient penalties or that somebody who 2 commits that crime may get out earlier. And I 3 wish to point out that if you continue that 4 treatment, then it has the benefit, as I said 5 before but it's worth repeating, of providing 6 better inmate management and also supervision 7 afterwards. 8 Now, there are some people who 9 believe that all crimes ought to carry with it 10 a determinant sentence, there are some very 11 prominent people who believe in that; District 12 Attorney Robert Morgenthau has been urging that 13 approach for a long time. The Congress went in 14 some direction, in that direction, and as you 15 know, they are now in the federal courts, some 16 fairly strict guidelines. 17 But I can't help but think that 18 this is something that, you know, may sound 19 very good in the community, we will not exempt 20 sexual predators and so on, but I don't find 21 that it fits into the structure of sentencing 22 that we have and I think it carries some 23 unfortunate consequences. 1673 1 So, I don't think the issue 2 here is whether you're going to be tough on 3 sexual predators. I think all of us are tough 4 on sexual predators, none of us, I think, have 5 any desire to see that anything other than 6 strict punishment is meted out and a punishment 7 that protects the public. But I think just to 8 put forth bills of this sort which maybe carry 9 some nice publicity with it and you can come 10 out with some nice sound bites on it but that 11 really don't fit into the way that we deal with 12 these sort of crimes, that I think far from 13 protecting society, I think it actually creates 14 problems for society. I think it makes it - 15 gives us less protection against sexual 16 predators, as Senator Nozzolio likes to refer 17 to them. 18 I just think that this has 19 become very fashionable. We had Meagan's Law 20 last year, and I think we overdid that to a 21 large extent. I think similar bills, as this 22 one, which again, make good headlines, but I 23 don't think they're good social policy. 1674 1 ACTING PRESIDENT KUHL: Senator 2 Skelos is next on the list; he waives. 3 Senator Abate is next on the 4 list. 5 SENATOR ABATE: Just on the 6 bill briefly. 7 ACTING PRESIDENT KUHL: Senator 8 Abate on the bill. 9 SENATOR ABATE: Just to remind 10 all of us that last year we passed a truth in 11 sentencing law which said in terms of if you're 12 a violent offender and you've done it a couple 13 times or you're a persistent violent offender, 14 you're not going to get an indeterminate 15 sentence. We already went to determinant 16 sentencing last year and raised the minimum and 17 the maximum, so if someone could have gotten - 18 and it was raised across the board, so if the 19 average sentence was three to six under the old 20 indeterminate law, under the new determinant 21 law, the truth in sentencing law that was 22 passed last year, violent felons, the people 23 we're talking about here, will be doing a lot 1675 1 more time and they will get a determinant 2 sentence, the judge will say, "I want him to do 3 nine years," all right, or, "I want them to do 4 so seven years," there was no range; and what 5 they did is, there is no discretionary parole. 6 We decided that was a good way to handle it 7 because we thought that there were certain 8 violent felons that should stay in prison 9 longer. 10 What we did last year is we 11 kept the good time allowance which meant if 12 someone behaved themselves in prison, gave them 13 an incentive to behave, they wouldn't get one 14 third off, what we decided last year, they 15 would get one-seventh off. 16 We deliberated that, or didn't 17 deliberate that process, but in our wisdom last 18 year, we said, "We'll take away discretionary 19 parole, we'll elongate the sentence, we'll 20 reduce good time off the back from one-third to 21 one-seventh; and I guess my question is now, 22 why are we doing it differently this year? We 23 dealt with murders last year, we dealt with all 1676 1 kinds of heinous crimes and we decided we'll 2 elongate the sentence, take away discretionary 3 parole and reduce good time. Why are we 4 treating this differently? 5 Let's not talk about one-third, 6 let's reduce it to one-seventh, but that good 7 time which allows parole supervision gives the 8 capacity for correction officials to control, 9 it's another tool to control inmates who are 10 difficult. 11 Why are we disrupting a system 12 that we think is working. And I go back to the 13 argument that Senator Leichter has done, if we 14 did it that way last year, what has changed 15 between last year and this year? It means that 16 we should be taking away good time altogether, 17 which will impact, again, on public safety. 18 ACTING PRESIDENT KUHL: The 19 Chair recognizes Senator Marchi. 20 SENATOR MARCHI: Perhaps I 21 don't understand this issue well enough, but I 22 am a little concerned about prisoner 23 management, there must be some effect there; 1677 1 and then the other issue that you raised, 2 reducing it to that one-seventh, does that 3 one-seventh of a period constitute a kind of 4 halfway house from where there is a societal 5 benefit knowing what the circumstances are when 6 a person emerges and reenters into society. 7 Even though I assume that the 8 Meagan Law is still operative, I mean, in this 9 case, you know, I think there may be some 10 societal benefits in the experience that we all 11 acquire under these circumstances without 12 expanding into a largess that goes beyond 13 limits and also the factor, I think, in 14 management of conduct within an institution. 15 I assume that if we wanted 16 more, we can just extend the -- increase the 17 sentence, but I don't think it's bad to have a 18 short period of structured presence by law on 19 the circumstances of a reentry of one of these 20 violators who have a high rate of recidivism, 21 and perhaps we may all learn something from the 22 process. 23 I'm a little disturbed about 1678 1 this change, unless there are -- I can be 2 corrected on this, but I am troubled by it and 3 I don't intend to vote for it unless there is 4 some answer that I can understand that makes it 5 rational. 6 ACTING PRESIDENT KUHL: The 7 Chair recognizes Senator Montgomery. 8 SENATOR MONTGOMERY: Thank 9 you, Mr. President. I wonder if the sponsor 10 would answer a question I have. 11 ACTING PRESIDENT KUHL: Senator 12 Nozzolio, do you yield to Senator Montgomery? 13 SENATOR NOZZOLIO: Yes, Mr. 14 President. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR MONTGOMERY: Thank 18 you. Senator Nozzolio, in your sponsor's memo, 19 you refer to a Mr. Carl DeFlumer who was 20 convicted of murder and attempted sodomy and 21 served apparently almost 30 years, and then 22 immediately or practically immediately, two 23 years later, went back and sodomized someone 1679 1 else, another child. And I'm just wondering if 2 this person -- are you implying that he was 3 released earlier than his sentence based on 4 good time, or is it just that it almost doesn't 5 matter how long they serve, they are likely to 6 recidivate? 7 SENATOR NOZZOLIO: Mr. 8 President, Senator, it raises a good 9 question. The point I was trying to make with 10 this particular example was with the recidivism 11 and the notorious rate of recidivism and 12 examples of recidivism; I picked out this one 13 in particular, but there are statistics that 14 bear out the premise, the highest rate of 15 recidivism of any criminal behavior is that of 16 a sexual predator. And that was the reason 17 that I included this particular example in the 18 bill memo. 19 SENATOR MONTGOMERY: Thank 20 you. Mr. President, just one further question 21 for Senator Nozzolio. 22 ACTING PRESIDENT KUHL: Senator 23 Nozzolio, do you continue to yield to Senator 1680 1 Montgomery? 2 SENATOR NOZZOLIO: Yes, Mr. 3 President. 4 ACTING PRESIDENT KUHL: The 5 Senator yields. 6 SENATOR MONTGOMERY: Senator, 7 I don't see one and obviously we don't usually 8 come out with companion bills, but I'm just 9 wondering if, due to the fact that this is such 10 a difficult kind of person to treat, I know 11 that other legislators have attempted in the 12 past to deal with some sort of a program that 13 specifically addresses this type of individual. 14 I believe some years back Senator Hoffmann had 15 legislation trying to deal with sex offenders 16 in prison while they were serving time. I'm 17 just wondering if you have any thoughts about 18 that, if there's a plan that you have to 19 address it from that angle, given the fact that 20 it's -- you know, there's such a high rate of 21 recidivism and it doesn't appear to make any 22 difference how long or short the sentence is or 23 how long they remain, they are likely to come 1681 1 back. 2 Have you thought about looking 3 at treatment as a means of dealing with this 4 issue in particular? 5 SENATOR NOZZOLIO: Yes, Mr. 6 President, in response to the Senator's 7 question. I believe it is an extremely 8 important issue that we need to do more on - 9 more of, and Senator DiCarlo each year has 10 introduced the sex offender reform act which 11 provides for consistent treatment and continual 12 treatment. 13 Senator Abate's point that was 14 raised in committee is one that we followed up 15 with additional legislation requiring lifetime 16 parole for this type of criminal. That is a 17 measure that, as I mentioned earlier, will be 18 coming before this house in the very near 19 future. 20 I visited at Oneida Correctional 21 Facility this last winter or earlier part of 22 the winter a program of sex offenders and sex 23 offender treatment, and I believe that we need 1682 1 to continue those types of efforts in an effort 2 to ensure that we can at least fight this huge 3 rate of recidivism, that it does society no 4 good to have the repeaters again and again 5 continue this crime. 6 What we need to further ensure, 7 though, is that we give sight to the victim, 8 and that's the point of this legislation. We 9 can focus as much as we have been and need to 10 focus more on the predator, but the victim 11 needs to be remembered; and to give the 12 perpetrator of the crime a benefit, in effect, 13 relative to reducing their sentence just simply 14 smacks, I believe, to the sense of the victim 15 and I believe that is certainly something that 16 most of us share here and I can state it was 17 the reason for putting this measure before the 18 house. 19 SENATOR MONTGOMERY: On the 20 bill, Mr. President. 21 ACTING PRESIDENT KUHL: Senator 22 Montgomery, on the bill. 23 SENATOR MONTGOMERY: I'd just 1683 1 like to make a couple of points here. One, I 2 certainly agree with Senator Nozzolio and I 3 look forward to him coming out with legislation 4 that deals with treatment. 5 We have 70,000 people serving 6 in prisons throughout the state right now and 7 with an anticipation that in the next five or 8 so years, that number is going to grow 9 exponentially based on the sentencing laws that 10 we did last year, and what is anticipated will 11 be changes in our system this year. 12 And I think that if Senator 13 Nozzolio follows through and comes forth with a 14 bill for treatment of sex offenders, that's 15 what we absolutely should be doing because 16 we're going to have to look at our prison 17 system more and more as an opportunity to reach 18 people on many different levels, to educate 19 them, to provide various kinds of treatment 20 based on their addictions of various sorts, 21 including sex and what have you, to try to 22 reform people because we can't continue to have 23 people locked away in such large numbers 1684 1 realizing that at some point they are going to 2 be coming back into society and if we have not 3 done anything to try and rehabilitate them or 4 habilitate them, we're going to be more and 5 more pressured to build more and larger and 6 more secure prisons, and it's really going to 7 consume us as a budget item. 8 So, I think that while certainly 9 we need to deal with what to do about sex 10 offending prisoners, we also -- in terms of 11 their incarceration, we also need to deal with 12 some kind of treatment for them. We also need 13 to deal with treatment for people who are drug 14 addicts in prison, we need to be talking about 15 educating people, not taking away their 16 education opportunities. We need to be talking 17 about giving people an opportunity to work, to 18 be habilitated and rehabilitated on many 19 different levels. 20 So, I hope that this is a sign 21 for Mr. Nozzolio and all of the other 22 legislators and Senators who have brought forth 23 many different kinds of -- pieces of 1685 1 legislation dealing with the prisoners, mainly 2 taking away from prisoners, I think that we 3 need to talk about what can we do to make that 4 prison experience one that leaves us with more 5 positive and with better citizens than when 6 they went in because otherwise we are going to 7 continue to have to spend the kinds of dollars 8 that we're spending to keep people in prison, 9 and it is not cheap. 10 So, Mr. President, thank you. 11 ACTING PRESIDENT KUHL: The 12 Chair recognizes Senator Gold. 13 SENATOR GOLD: Thank you, Mr. 14 President. 15 Mr. President, I'll be brief. 16 I think that the -- the only part of this which 17 is disturbing is that we're dealing with a 18 patchwork, and the sentencing provisions of the 19 state as I think has been pointed out are more 20 than just putting someone aside and punishing 21 someone and society trying to set examples, it 22 does, in fact, set certain social patterns and 23 it creates an environment in a prison as well 1686 1 as out of a prison. 2 Now we've had legislation over 3 the years to try to pick apart victims, so if 4 you happen to assault someone who is a senior 5 citizen, no matter how old or young they look, 6 versus somebody who is not, no matter how old 7 or young they look, someone suggested there 8 should be a different penalty. But 9 theoretically, as we pointed out, if you were 10 to assault -- take a look at two people and 11 decide to punch, God forbid, a pregnant woman 12 in the stomach rather than her mother who might 13 be a senior citizen, you know, you got 14 different penalties. We were selecting 15 victims. We've done that in areas of young 16 and old. 17 The thing that bothers me about 18 this bill is not that it makes some judgments 19 in the sentencing field, it's that it doesn't 20 do it in terms of any particular pattern. So, 21 for example, if you had a situation where 22 somebody knives and seriously injures an adult, 23 they could perhaps get good time, whereas 1687 1 somebody who did an unpermitting touching to a 2 minor that was not a rape, was not a sodomy, 3 under this, you say no, they lose that benefit. 4 And, under this bill, I can see where you have 5 a jail filled with nonviolent drug offenders 6 who were sentenced under Rockefeller time, plus 7 some people who committed some sexual crimes 8 not of the most serious, and, therefore, our 9 parole board, having to do something to 10 alleviate the tensions in the prison, are 11 letting out people who are assaulters, who are 12 robbers, who are arsonists but perhaps not 13 first degree arsonists, et cetera, et cetera. 14 So, Senator Nozzolio, I think a 15 lot of people understand your concern for sex 16 offenders and particularly to protect younger 17 people. But I was very taken with Senator 18 Marchi's remarks. When you're dealing with 19 certain areas of the law, it has -- what we do 20 has far-reaching effects, and the sentencing 21 provisions happen to be one of those areas 22 where we, in fact, do deal with legislation 23 that has far-reaching effects. It will effect 1688 1 prison populations, it affects social conduct 2 in the street, and you cannot, in my opinion, 3 take one little pocket out of the patchwork of 4 our sentencing laws and in one bite decide 5 you're going to change it because today that 6 happens to be something which sounds popular. 7 So the urging you have from not 8 only this side, but people on your own side, 9 too, Senator, is to perhaps fit this into 10 something which is a pattern. I heard your 11 comments to Senator Leichter, and forgetting 12 the tone of them, which I think was 13 inappropriate, the point is, we do understand 14 your logic, Senator. Some of us think your 15 logic has certain motivations behind that logic 16 which you may not want to concede in public, 17 but the logic we understand, what we're talking 18 about, Senator, is that as a governmental body 19 and as a legislative body, perhaps there should 20 be more thought given to how this fits into a 21 total scheme rather than taken as if it was on 22 a desert island by itself. 23 ACTING PRESIDENT KUHL: The 1689 1 Chair recognizes Senator Mendez. 2 SENATOR MENDEZ: Thank you, Mr. 3 President. Will Senator Nozzolio yield for a 4 question? 5 ACTING PRESIDENT KUHL: Senator 6 Nozzolio, do you yield to a question from 7 Senator Mendez? 8 SENATOR NOZZOLIO: Yes. 9 ACTING PRESIDENT KUHL: Senator 10 yields. 11 SENATOR MENDEZ: Senator 12 Nozzolio, do -- sex offenders in prison are 13 more likely to behave better than the rest of 14 offenders while in prison? 15 SENATOR NOZZOLIO: Mr. 16 President, that's a very good question. I 17 don't have any emperical data, Senator, to 18 advise you of what that answer is, but it is a 19 good question, I just don't know the answer. 20 SENATOR MENDEZ: Oh, you 21 don't. Well, I think I know the answer and I 22 wonder if you would agree with me. I think 23 that sex offenders in prisons, those who commit 1690 1 sex crimes against children under the age of 2 18, which is usually the thing, that they do 3 behave very well in prison, you know why, 4 Senator Nozzolio? Because they do not have 5 children there to molest or to rape, and 6 because children are not there at their reach, 7 of course they're going to behave like angels. 8 I think that, Mr. President, 9 Senator Nozzolio, I think that the suggestion 10 that was made by Senator Abate pertaining to 11 the need to retain a little bit of, let's say, 12 a hook so that somebody who is released would 13 be able to fall within the umbrella of - 14 within the umbrella of parole and be intensely 15 watched is a good one and I certainly hope, if 16 I understood you correctly, didn't you mention 17 that you have another bill that would do 18 something along those lines? 19 SENATOR NOZZOLIO: Yes. Mr. 20 President, if I may, Senator Abate had raised 21 an issue, Senator Mendez, in committee that 22 discussed the issue of ensuring not a break in 23 probation or parole treatment for sex 1691 1 offenders, that we are pushing other 2 legislation that is not before the house today 3 but will be so very soon, that requires 4 mandatory sex offender treatment and 5 counseling, it requires a lifetime parole order 6 for those repeat offenders. 7 So, it is something that I 8 believe is certainly appropriate for long-term 9 dealing with this issue; and I think taken in 10 conjunction with the bill before us today makes 11 good sense. 12 SENATOR MENDEZ: You know, 13 Senator Nozzolio, Mr. President, on the bill, I 14 really believe, I truly believe that it is a 15 total waste of taxpayers' moneys to provide 16 treatment to sex offenders. The fact remains 17 that they are the worst recidivists. The 18 increasing sexual crimes against children has 19 been -- has been proceeding at such a fast rate 20 that society, government, must do something 21 about it. It is a -- statistics show that 22 they're the worst recidivists ever, so 23 actually, there is no way -- once a rapist, 1692 1 unfortunately, that is the bottom line, you are 2 going to be a rapist. Once a sexual offender 3 against children, unfortunately, you are going 4 to keep on preying on children. 5 And I feel very strongly, Mr. 6 President, that it is one of the primary 7 functions of government to protect its citizens 8 and the only way in which our government will 9 be able to prevent women from being raped over 10 and over and over, the only way that our 11 government is going to prevent children from 12 being raped and killed and traumatized for life 13 because of these sex offenders that do not 14 have -- that we don't have -- science has not 15 come up yet with a way in which they could be 16 rehabilitated. So, until then, I am going to 17 support your bill very gladly. I hope that the 18 aspect of treatment is eliminated. We do not 19 have any moneys for them to proceed in your 20 next bill to make sure that once they complete 21 their sentence, there is some after - 22 tailoring, let's say, there would be some kind 23 of a mission in which they will be watched 1693 1 fully. 2 That's a horrible problem that 3 our society has and that would be the best that 4 we can do. 5 I've always maintained here in 6 this same chamber that the best thing to do so 7 is to have sex offenders segregated, let them 8 there, work for their keep and let's stop 9 having them hurt women and children of the 10 state of New York. 11 Thank you, Mr. President and 12 I'll be voting aye. 13 ACTING PRESIDENT KUHL: The 14 Chair recognizes Senator Espada. 15 SENATOR ESPADA: Thank you, 16 Mr. President. I think the heightened emotions 17 are due to some of the inherent contradictions 18 that we've heard in the debate. 19 If one was to come to a logical 20 deduction, then I'm left with the following 21 that I wish to share for my colleagues: Mr. 22 Carl DeFlumer, who spent 30 years in, jail only 23 to get out and sodomize someone 13 years of age 1694 1 two years later, under the provisions and under 2 the discussion that's been had on the floor, 3 that would justify leaving Carl out there 4 alone, unsupervised, I guess someone could say, 5 "Well, wait a minute, their neighbors will now 6 know that Carl's on the loose." 7 Is that the only protection 8 that society, that law-abiding citizens deserve 9 is a question, is a legitimate question. Some 10 of the answers that one of my colleagues just 11 gave was perhaps perplexing in that 46 percent 12 is a rate of recidivism that is noted here in 13 the justification for this bill. I cannot 14 fathom how we can justify, in the face of a 15 recidivism rate of that size, that to leave 16 Carl and those of his ilk alone; that in the 17 interests of protecting children and neighbor 18 hoods and families, that something else ought 19 to kick in, and perhaps that's the bill that's 20 coming up next week, but this is before us 21 today and this makes the situation worse. 22 We're all for the basic premise 23 that sex offenders should be punished. Carl 1695 1 was punished for 30 years, we could have left 2 him in there some more years; eventually he 3 would have gotten out. Without any 4 supervision, it makes matters worse. 5 Therefore, we stand not in favor of sex 6 offenders, but more protection for the public 7 at large, and a supervised provision is one of 8 those things. I imagine that there may be 9 other interventions, treatment and what have 10 you, could be a subject of discussion; since 11 it's not today, we stand opposed to this bill. 12 ACTING PRESIDENT KUHL: Is there 13 any other Senator wishing to speak on the 14 bill? 15 (There was no response.) 16 Hearing none, the Secretary 17 will read the last section. 18 THE SECRETARY: Section 4. 19 This act shall take effect on the first day of 20 November. 21 ACTING PRESIDENT KUHL: Call the 22 roll. 23 (The Secretary called the 1696 1 roll.) 2 ACTING PRESIDENT KUHL: Announce 3 the results when tabulated. 4 MR. GOLD: Mr. President. 5 ACTING PRESIDENT KUHL: Senator 6 Gold, why do you rise? 7 MR. GOLD: Yes, if I could 8 explain my vote. 9 ACTING PRESIDENT KUHL: Senator 10 Gold to explain his vote. 11 SENATOR GOLD: Mr. President, 12 I'm going to vote against the bill but I want 13 to make it clear to Senator Nozzolio in his joy 14 that if he were to put in a general bill that 15 will do the things that Senator Espada 16 mentioned that would have, for example, things 17 in it that I've suggested over the years like 18 the Mahwah plan in New Jersey which had real 19 treatment for sex offenders, which is the only 20 criminal, by the way, who you can do something 21 about in that sense, and if you had things in 22 it which took into account whether or not the 23 state of New York should generally go to 1697 1 determinant sentencing, even for people who 2 knife people, who maim children, who knife 3 children, who kill children, not only touch 4 them in a form of misdemeanor, then maybe some 5 of us could vote for such an overall plan. 6 The Congress does something 7 which I think makes some sense, they pass many, 8 many less laws than we do and they will have 9 the Crime Act of 1995, 1996 and they will give 10 you things which take a look at the criminal 11 justice system and have a plan. Well, 12 Congressmen don't get as many pen certificates, 13 I guess, as you try to get in New York and we 14 break up our laws in a different way. 15 But, unfortunately, when you 16 break them up, sometimes you work your way into 17 a corner which makes no sense and no logic. 18 I vote no. 19 THE SECRETARY: Those recorded 20 in the negative on Calendar Number 254 are 21 Senators Abate, Connor, Espada, Gold, Leichter, 22 Marchi, Montgomery, Paterson and Smith. Ayes 23 48, nays 9. 1698 1 ACTING PRESIDENT KUHL: The 2 bill is passed. 3 Senator Montgomery, why do you 4 rise? 5 SENATOR MONTGOMERY: Mr. 6 President, last Wednesday, I was attending a 7 hearing on reform of the child welfare system 8 and I was not in the chamber when the body 9 voted on Calendar Number 251, Senate Bill 408, 10 and had I been present, I would have voted no 11 on that legislation. 12 ACTING PRESIDENT KUHL: Senator 13 Montgomery, the record will reflect that had 14 you been in the chamber last Wednesday when the 15 roll call was taken on Calendar Number 251, 16 that you would have voted no. 17 Secretary will continue to call 18 the controversial calendar. 19 THE SECRETARY: Calendar Number 20 287, by Senator Cook, Senate Print 636, an act 21 to amend the Town Law in relation to the terms 22 of office of elected officers. 23 ACTING PRESIDENT KUHL: Senator 1699 1 Cook, an explanation of Calendar Number 287 has 2 been asked for by the Acting Minority Leader, 3 Senator Paterson. 4 SENATOR COOK: Mr. President, 5 some years ago, we amended the law and 6 permitted towns to increase the term of office 7 of certain of their officials. At least one 8 town and probably some others have attempted to 9 reverse that and to change the terms back from 10 four years, back from two years. 11 We have conflicting opinions. 12 The Attorney General has a published opinion 13 that seems to state that the town may reduce 14 the term of its supervisor from four to two 15 years by local law. We have a letter from the 16 Comptroller that says that -- well, in effect, 17 that they don't believe they can. 18 So, it's as much as anything a 19 matter of just trying to clarify that the 20 intent of the Legislature would be that if the 21 town was able to increase the term, they were 22 also able to decrease the term. 23 ACTING PRESIDENT KUHL: The 1700 1 Secretary will read the last section. 2 THE SECRETARY: Section 2. 3 This act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call 5 the roll. 6 (The Secretary called the 7 roll.) 8 THE SECRETARY: Ayes 57. 9 ACTING PRESIDENT KUHL: The 10 bill is passed. 11 Senator Marcellino, that 12 completes the controversial calendar. What's 13 your pleasure, sir? 14 SENATOR MARCELLINO: Mr. 15 President, is there any housekeeping at the 16 desk? 17 ACTING PRESIDENT KUHL: There 18 is no housekeeping at the desk, Senator 19 Marcellino. 20 Senator Seabrook, why do you 21 rise? 22 SENATOR SEABROOK: I rise in 23 reference to requesting unanimous consent to 1701 1 cast my vote in the negative on the bill 2 Calendar Number 254. 3 ACTING PRESIDENT KUHL: Without 4 objection, hearing no objection, Senator 5 Seabrook will be recorded in the negative on 6 Calendar Number 254. 7 Senator Paterson, why do you 8 rise? 9 SENATOR PATERSON: Mr. 10 President, I would like to announce that there 11 will be an immediate meeting of the Minority in 12 room 314. 13 ACTING PRESIDENT KUHL: There 14 will be an immediate meeting of the Minority in 15 the Minority conference room, room 313? 16 SENATOR PATERSON: Yes, Mr. 17 President. 18 ACTING PRESIDENT KUHL: 19 Immediate meeting of the Minority in the 20 Minority conference room, room 313. 21 Senator Marcellino. 22 SENATOR MARCELLINO: Mr. 23 President, there being no further business, I 1702 1 move we adjourn until Tuesday, March 5th at 3 2 p.m. Promptly. 3 ACTING PRESIDENT KUHL: Without 4 objection, Senate stands adjourned until 5 tomorrow, March 5th at 3 p.m. 6 (Whereupon, at 4:23 p.m., the 7 Senate adjourned.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23